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MIRA v Maldives Quality Seafood Pvt Ltd

 
Summary

An appeal of the Supreme Court, whereby the Supreme Court affirmed the High Court’s application of the rules on stay of enforcement orders laid down in the stay of enforcement order1 issued by the High Court in Allied Insurance v Yacht Tours2 and overturned the Supreme Court’s Writ of Prohibition Number 2011/SC-SJ/04.3

 
Factual Background

  1. Maldives Quality Seafood (MQS) objected to the tax assessment made by Maldives Inland Revenue Authority (MIRA) via the Notice of Tax Assessment and Goods and Service Tax Audit Report dated 20 October 2016.
  2. Detailing its reasons for the objections, MQS submitted a Notice of Objection to the MIRA. In response to the Notice of Objection of MQS, on 29 December 2016, MIRA issued an Objection Review Report (the “ORR”), whereby MIRA rejected MQS’s objections. The reasoning given by MIRA was that only supplies of fish are zero-rated under Section 22 of the GST Act4.

 
Procedural History

  1. MQS appealed MIRA’s decision to reject MQS’s objection at the Tax Appeal Tribunal, vide case number TAT-CA-G/2017/003. The TAT unanimously deciding in favour of MQS held that the MIRA had erred in their decision in the ORR and ordered the MIRA to refund the taxes paid by MQS in relation to the case.
  2. MIRA appealed TAT’s decision at the High Court, vide the case at the docket number 2020/HC-A/104. MIRA also applied for a stay of enforcement order at the High Court to stay the enforcement of the decision of TAT.
  3. However, the Justices of the High Court, vide its decision number 95-B2/CHT/2020/4009 (the “High Court’s Decision”) unanimously decided against issuing a stay of enforcement order as requested by the MIRA.
  4. MIRA proceeded to appeal at the Supreme Court the decision of the High Court not to issue a stay of enforcement order in the case.

 
Legal Issue(s)

  1. What are the confinements within which the High Court must apply the rules on stay of enforcement orders laid down by the High Court in Allied Insurance v Yacht Tours?
  2. Is the decision of the High Court not to issue a stay of enforcement order in this case in contravention of the Writ of Prohibition of the Supreme Court (Number 2011/SC-SJ/04) and contravene MIRA’s right to appeal?
  3. Did the High Court contravene the principles of natural justice and MIRA’s right to a fair and transparent hearing in deciding not to grant a stay of enforcement order?.

 
Holding(s)

Unanimously dismissing the appeal, the Justices of the Supreme Court held that:

  1. As the MIRA was not able to substantiate how the High Court erred in principle in its application of the rules on stay of enforcement orders laid down in Allied Insurance v Yacht Tours, the Supreme Court cannot decide that the High Court had erred in applying the rules to a decision within the discretionary powers of the High Court.
  2. Even though under the Supreme Court’s Writ of Prohibition (Number 2011/SC-SJ/04), an appeal can amount to automatic stay of enforcement of lower court’s decision, this is not good law.
  3. Even though the MIRA claimed that its appeal right will be lost if a stay of enforcement is not granted in case, the fact that MIRA has already appealed the TAT’s decision at the High Court contradicts MIRA’s such claims. Further, MIRA was unable to substantiate how the appeal rights are limited if a stay of enforcement is ordered.
  4. In deciding not to grant a stay of enforcement order in the case, the High Court has not has contravened the principles of natural justice and right to fair and transparent hearings conferred under Article 42 of the Constitution.

Reasoning(s)

On the application of rules on stay of enforcement orders in Allied Insurance v Yacht Tours

  1. The rules on stay of enforcement orders laid down by the High Court Allied Insurance v Yacht Tours can be regarded as general rules to apply when deciding on stay of enforcement orders
  2. Under the principles of treating like cases alike and juridical precedent, the High Court is only required to apply the rules on stay of enforcement orders it previously laid down in case number Allied Insurance v Yacht Tours, after having considered the surrounding circumstances and facts of a particular case, i.e., precedents set by previous decisions are required to be applied subjectively in each case, taking into account the facts of that case.
  3. The MIRA did not contend the validity of the rules laid down by the High Court in Allied Insurance v Yacht Tours and the discretionary powers of the High Court to issue stay of enforcement orders under Sections 67 and 68 of the High Court’s Regulation. MIRA’s contention was that the High Court had in principle erred in applying the rules in Allied Insurance v Yacht Tours to the appeal of MIRA. However, MIRA did not substantiate any reason as to how the High Court erred in principle.

On writ of prohibition and automatic stay of enforcement

  1. A writ of prohibition is a written order of a higher court prohibiting a lower court from carrying out an action because it is outside the lower court’s jurisdiction. Such writs of prohibitions do not stay the enforcement of a lower court’s decision.
  2. The Writ of Prohibition of the Supreme Court was handed down in relation to an application for leave to appeal and without granting the leave to appeal at the Supreme Court, without the registration of the case, and without a hearing. The Writ of Prohibition of the Supreme Court was therefore handed down without following the proper court procedures.
  3. It is a general principle of law that an appeal of decision does not automatically amount to a stay of enforcement order. The enforcement of a decision can only be stayed when an appellate court issues a stay of enforcement of that decision. Appellate courts must issue such stay orders after taking into consideration the fact of the case and weighing the costs and conveniences of such orders.

On right to appeal and stay of enforcement orders

  1. Appeal means to apply to a higher court requesting for the judgment or decision of a lower court or tribunal to be reviewed.
  2. While MIRA has already appealed the decision of the TAT on the substantive issue in the case, at the High Court, MIRA did not provide an explanation on how MIRA’s right to appeal will be lost if a stay of enforcement is not ordered.
  3. Although the right to appeal is a constitutional right granted under Articles 56 of the Constitution and it cannot be limited unless by an Act of Parliament, stay of enforcement orders are issued by courts under the discretionary powers conferred on courts by an Act of Parliament. Hence, provided that courts such orders within the confinements of the discretionary powers conferred, such orders cannot be regarded as a limitation of a constitutional right.

On Principles of Natural Justice

  1. The right of fair and transparent hearings provided for under Article 42 of the Constitution comprises of various subheads. The express wordings of Article 42 of the Constitution itself includes (1) right to everyone to fair and a public hearing within a reasonable time by an independent court; (2) all judicial proceedings to be conducted with justice, impartiality and transparency; (3) all judicial proceedings to be public except in exceptional circumstances, and (3) all judgments and order to be pronounced publicly and available to the public.
  2. Although the principle of natural justice is closely related to the principle of right of fair and transparent hearings, it is a separate principle. The principle of natural justice also comprises of various subheads including; (1) the right to know the opposing case and to be heard (hearing rule); (2) the right for the decision maker(s) to be free from bias (rule against bias); (3) the right for a decision to be based on evidence (evidence rule); and (the right for a decision to be proportionate to the circumstances of the case (proportionality).
  3. MIRA only stated that the High Court contravened the principles of natural justice and right to fair and transparent hearings and did not go beyond that to substantiate such claims.
References

1 Order Number 95-B2/CHT/2020/2990.
2 Allied Insurance Company of the Maldives v Yacht Tours Maldives Pvt Ltd [2020/HC-A/158].
3 [2021] SC 60.
4 Law Number 10/2011.

 

Impounding Passports in Civil Claims – An Exploration of the Legislative Framework & Current Practice

by Nazaha Nasheed

The media often relays to us tales of crime suspects and law offenders becoming fugitives to escape the reach of law and jurisdiction of the country in which they conducted their illegal activity. Take Vijay Mallya for instance, the former owner of Kingfisher Airlines who fled India1 after defaulting on large sums of money to his creditors and facing serious accusations of money laundering. In order to circumvent such instances where wrongdoers potentially escape the jurisdiction by fleeing to another country, courts sometimes decide to impound the passports of such persons. However, in this article, I will focus mainly on the impoundment of passports in matters related to civil disputes without a proven debt, as this is a mostly unexplored area of discussion.

What does impounding a passport entail?

A passport is the most important travel document one could possess in the 21st century – unless you have a valid passport, your freedom of movement can be largely restricted when it comes to international travel. So what does it mean to impound a passport?

Black’s law dictionary defines “impound” as “to take into the custody of the law or of a court.” In order to impound a passport, Maldivian courts will usually issue an order alerting relevant authorities that the passport has been impounded, essentially imposing a travel ban on the passport holder for a duration deemed necessary by the court. It is not difficult to deduce the rationale behind a court impounding the passport of an offender who might flee the country to evade consequences of breaching the law.

Legislative Background to Impounding Passports in Maldives

The measure of restricting travel by impounding a passport is not an unfamiliar concept in Maldivian courts. It is necessary that we now explore the legislative background that gives Maldivian courts the legal authority to impound a passport in civil cases to understand how this discretionary power is applied in real life situations. As such, the courts mainly refer to two regulations in exercising this measure. Firstly, Section 2952(4)(a)(1) of the Regulation on Conducting Trials 6.0 (2003)3 stipulates that the Court can issue an order to prevent a defendant from fleeing the jurisdiction where the Court has reasons to believe the defendant might do so.

Secondly, Section 9(a) of the Regulation on Enforcement of Unsecured Judgment Debts4 gives the Court a discretionary power to issue an order impounding the passport of a debtor of a proven claim. Although Article 41 of the Maldivian Constitution5 provides for the freedom of movement and establishment of citizens, we can see that the legal framework of Maldives provides certain situations whereby this fundamental right to move freely can be restricted.

However, it should be stressed that impounding a passport is not a measure that can or should be taken lightly by the courts. As previously mentioned, it includes the limitation of a fundamental right afforded by the Constitution. Article 16 of the Constitution stipulates that a right or freedom guaranteed by the Constitution can only be limited through a law enacted by the Parliament, to an extent demonstrably justified in a free and democratic society. It would be prudent to also highlight here that Article 55 of the Constitution states that no person can be detained for non-fulfilment of a contractual obligation.6

Moreover, the Maldives is a party to international conventions such as the Universal Declaration of Human Rights7 and International Covenant on Civil and Political Rights8 which grants everyone the “right to leave any country, including his own, and to return to his country.” It is notable that Article 12(3) of the latter convention states that this right shall not be subject to any restrictions except those that are necessary to protect national security, public order, public health or morals or the rights and freedoms of others.

Hence, the qualification of such a fundamental right which is tied to the personal liberty and freedom of a person should always be carefully considered, especially when it concerns civil cases. Therefore, courts will have to adopt a balancing act of the rights of the defendant versus the rights of the potentially wronged when issuing orders to impound the passport of a defendant in a civil matter.

Impounding Passports in Practice – how is it done in Maldives?

It would now be useful to see how the implementation of this measure is practised in the Maldivian court system. When it comes to civil cases, this measure is frequently taken against individuals or directors of a company during the enforcement proceedings of a judgment debt against the company in which they are the directors. This power is granted to the courts through the above-mentioned Regulation on Enforcement of Unsecured Judgment Debts.9

This raises the question of whether this measure can also be taken against a defendant in a case where there is an ongoing claim, i.e. pendency of proceedings10, lodged against them but no existing or proven debt.

As the Regulation on Enforcement of Unsecured Judgment Debts by its very title discounts the idea, we can conclude that a Court cannot use Section 9(a) of said Regulation in a case that does not have a proven claim. That leaves us with the earlier mentioned Section 295(4)(a)(1) of the Regulation on Conducting Trials 6.0. On a prima facie and broad reading of the Section, one could argue that the Court could indeed restrict the movement of a defendant should it believe that the defendant in the case might flee the jurisdiction, regardless of the nature of the claim, i.e. not necessarily a claim involving an already proven debt or even in non-monetary claims.

This was the approach adopted by the High Court in the case of Razman Bin Bujang v Icon Computers Maldives Pvt Ltd11 (“Bin Bujang case”), whereby it decided to uphold the decision of the lower court in impounding the passport of a Singaporean national Razman Bin Bujang in a case filed against him, Scanpower Maldives Pvt Ltd and Scanpower International Pvt Ltd12. Although the substantive case was still ongoing and the claim against him had not been proven, the High Court decided that the lower court was correct in impounding Bin Bujang’s passport as he was likely to quit the jurisdiction of Maldivian law prior to a decision being passed in the substantive case13, i.e. before the Court determines which party has to bear responsibility for the claimed amount. The basis for the High Court in upholding the decision of the lower court to impound the passport was seemingly centred on the fact that the defendant in the substantive case is a foreign national14 and Maldivian courts would not have the jurisdiction to review the substantive case should he quit the jurisdiction. It is noteworthy to mention here that no similar case law could be found that involved the impounding of the passport of a Maldivian citizen during the course of an ongoing civil claim without a proven debt.

Contrast the above case with the recently issued judgment by the High Court in the case of Mohamed Abdulla Ahmed Al Mursi v Prosecutor General’s Office15 (“Al Mursi case”). Although the subject matter of this case involves a criminal allegation and therefore the legal authority that empowers the court to impound the passport in this case varies from that of civil cases, it is worthwhile for our discussion to take a glance at the method and rationale adopted by the High Court in reviewing the decision of the lower court to impound the passport of the appellant – an Egyptian national.

In the case of Al Mursi, the High Court held that the fact that the appellant was a foreigner and therefore had resources to take up residency in a country outside of Maldives is not by itself sufficient reason to conclude that he was about to flee the jurisdiction, considering no other evidence supporting such conclusion was submitted.16 In coming to this decision, the High Court reflected on recent Supreme Court cases such as Afiya Moosa v Prosecutor General’s Office17 and Prosecutor General’s Office v Abdulla Jihad18 which includes discourse on the subject of impounding passports of accused persons in criminal cases.

It is noteworthy that in the above-mentioned criminal cases deliberated by the High Court and Supreme Court of the Maldives, the matter of restricting travel was considered very seriously and the Court laid down tests19 and factors20 to be considered by courts before issuing an order to impound a passport. Furthermore, in the case of Prosecutor General’s Office v Abdulla Jihad21, the Supreme Court held that the decision of the High Court to release the passport of the accused was proper.

Additionally, the Criminal Court’s decision22 to release the passport for medical reasons as cited by Ali Waheed, a man charged with seven counts of sexual violence, further purports the idea that courts are extremely reluctant to restrict the travel of an accused person even in criminal cases. In this case, the Court even went so far as to allow Ali Waheed to place a guarantor23, whereby legal action could be pursued against the guarantor should he flee the jurisdiction. We can therefore establish that the standard of proof required to prove that a person is about to flee the jurisdiction is rather high in criminal cases.

Consequently, it is bizarre to juxtapose these decisions with the earlier mentioned case of Bin Bujang – why are the courts seemingly more lax when it comes to impounding a passport of a foreign national involved in a civil claim, when more stringent approaches have been adopted in consideration of taking the same measure in cases involving serious criminal charges? Does the Court currently adopt a discriminatory approach against foreign nationals24 when considering the restriction of travel in civil disputes filed against them? The legal authority on the matter of impounding passports in civil cases are limited and hence, we are unfortunately forced to surmise that the approach and reasoning adopted by Maldivian courts in restricting the freedom of movement of parties in civil cases are at present, unclear and arbitrary.

Other jurisictions

We can now briefly glance at how other jurisdictions tackle this issue. In the case of Satish Chandra Verma Ips vs Union of India, the Supreme Court of India issued a daily order25 that stated that the Court was of the opinion that pendency of proceeding is not a sufficient ground to prevent the appellant from traveling abroad.26 The appellant, whose passport had been impounded by the lower court, argued that he was not involved in a criminal case and the departmental enquiries and the cases stemming from challenging the enquiries were still pending and not decided upon.

In the UK, most of the cases that deliberated on the issue involved family law proceedings and granting of ancillary relief. The courts were still extremely careful in considering the limitation of the fundamental right to freedom of movement granted to an individual. As such, in the case of Re P (Discharge of Passport Order)27 decided by the Family Division of the High Court of UK, Cobb J stated that:

“The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly…”

The above illustrations support the idea that it is extremely rare for courts from other jurisdictions to even consider impounding the passport of an individual in pending civil proceedings due to what can only be assumed to be an absurdity in the very notion itself.

Areas to be Addressed: Gaps in the System

The current ambiguity of the Maldivian law and court system in determining at what stage a passport should be impounded in civil matters and what factors should be taken into consideration when doing so gives rise to a number of issues, some of which are contemplated below.

  • Do courts have a legitimate legal authority to curb the fundamental right to freedom of movement in civil cases?

As previously discussed, Article 16 of the Constitution provides that only a law passed by Parliament can limit a freedom or right provided for by the Constitution. For criminal cases, the Criminal Procedure Code28 stipulates the instances in which the freedom of movement can be restricted through an order issued by the court. However, there is currently no law passed by the Parliament that gives the same authority to courts in civil cases. As mentioned above, the courts currently derive this discretionary power from either practise or regulations, origins of which precede the Constitution itself.

In my opinion, the validity of curbing a fundamental right or freedom through practice or regulation is questionable and contravenes Article 16 of the Constitution. Fundamental rights and freedoms such as the freedom of movement29 and not being detained for non-fulfilment of contractual obligations30 cannot be curbed through a regulation – especially under old regulations such as the Regulation on Conducting Trials 6.0 and the Regulation on Enforcement of Unsecured Judgment Debts, which were both given validity retrospectively31 under the General Regulations Act32

At the very least, the General Regulations Act does not have a provision that empowers the aforementioned regulations to qualify a fundamental right or freedom. Therefore, it cannot possibly meet the requirement set in Article 16 of the Constitution. Consequently, it is crucial to wonder how the courts are currently entitled in issuing orders to impound passports and restricting a fundamental right when it comes to civil cases. 

  • Dangerous precedent in civil cases

We have seen how in the case of Bin Bujang, the passport of a foreigner was impounded in an ongoing claim. The implications of such a decision should not go unnoticed or be taken lightly. Such precedents can open up the opportunity for parties to abuse the court process by lodging frivolous cases in an attempt to restrict the defendant’s right to travel. This might lead to a court encroaching upon an individual’s personal liberty without justifiable grounds. As a result, such decisions have the potential of being in violation of human rights and international conventions ratified by the Maldives. 

One could hope that the Civil Procedure Bill in Parliament right now might offer a solution to the dilemmas caused by the vagueness and lack of rules in this area of law. Remarkably, the Bill submitted to the People’s Majlis33 currently does not address situations or rules by which passports can be impounded in a civil proceeding. Therefore, we can sum up that there is a strong need for clarity in the rules and factors to be considered by Maldivian courts in impounding passports regarding civil cases.

 
References

1 https://thewire.in/business/vijay-mallya-has-left-india-ag-tells-sc-notice-issued-on-loan-recovery.
Ref No. 2003/02 MJC (20 January 2003).
Page Number 213.
Translation of “Rahuneh Nuhimeney Saabithu Dharaneege Muaamalaaiythakugai Amalukuranveegothuge Gavaaidhu”.
Constitution of the Republic of Maldives, 2008.
One could argue that “imprisonment” can be read to include impounding a passport of a person so as to restrict their freedom of movement.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966 (Accession by Maldives on 19 Sep 2006).
Note 4.
10 An undecided lawsuit, the state or time of which is pending.
11 2012/HC-A/17 [9 April 2012] High Court of the Maldives.
12 Razman Bin Bujang was the majority shareholder in the company.
13 Note 11, para 2 (fourth line) of pg 7.
14 Note 11, para 2 (first line) of pg 7.
15 2021/HC-A/96 [31 March 2021] High Court of the Maldives.
16 Note 15, para 19.
17 2021/SC-A/08, [2021] SC 24.
18 2021/SC-A/04 [2021] SC 19.
19 Note 15, paras 23-29.
20 Note 14, para 24.
21 Note 15, para 51.
22 Press Statement by the Prosecutor General’s Office (11 Feb 2021).
23 Pg 5, para 2 of Press Statement by the Prosecutor General’s Office (11 Feb 2021).
24 A discriminatory approach against foreign nationals in such circumstances could be in violation of Article 17 of the Constitution, which provides for and includes non-discrimination based on national origin.
25 Daily order issued by Supreme Court of India on 9 April 2019.
26 https://indiankanoon.org/doc/93755546/.
27 [2020] EWHC 3009 (Fam).
28 Section 75 of Criminal Procedure Code (Law Number 12/2016).
29 Note 5, Article 41.
30 Note 5, Article 55.
31 The Act was passed in 2008 after the current Constitution came into force and introduced the requirement of regulations being empowered under a parent law passed by Parliament, pursuant to Article 94.
32 Section 2 and Annex 2 of the General Regulations Act (Law Number 6/2008).
33 Civil Procedure Bill (Bill Number 19/2019/ބ-54).

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